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Friday, May 13, 2016

Should Unindicted Co-Conspirators Be Identified?

Is it fair to publicly identify unindicted co-conspirators in a criminal investigation?

The attorney for one such person involved in the Bridgegate - George Washington Bridge lane closing federal investigation argues it is not fair, because such identification deprives the identified co-conspirator of due process and brands him (or her) as a potential criminal suspect (or felon).

There are several issues here.

First, can the unindicted co-conspirator be identified? It is one thing if the authorities use opaque descriptions like "CC-1." (The CC stands for co-conspirator.) It is quite another if the authorities use a pretty defined term like "Public Official 1," which term was used once to refer to a certain former state governor and which led in short order to press suspicions and a confirmation from said governor that, yes, he was the person referred to in the criminal information (the charging document issued when a defendant enters a guilty plea to avoid a formal indictment). There are actually formal guidelines for the identification of suspects who have not been charged and the authorities generally try (or at least the guidelines give the impression of the effort) to avoid impugning the reputation of uncharged individuals.

That's because of the second issue. If the identifiable unindicted co-conspirator is never charged but only suspected, his reputation may be seriously harmed.

Most critically, the third issue: The suspect, who is "outed" as a suspect, may never be charged. The good news is avoiding an indictment and surely the greater reputational damage (assuming the suspect is in fact innocent and ultimately exonerated or cleared by a judge or jury) of the indictment, perp walk and pre-trial drama. 

The bad news? 

The suspect co-conspirator never "gets his day in court" to answer, oppose and refute the suspicions. 

The suspect never gets to see (or debunk) the purported evidence against him. 

The suspect never gets to confront his witnesses.

The result?

The suspect gets outed as a suspect, suffers the reputational harm (or at least the prospect of it), and is denied any opportunity at rehabilitating his reputation or establishing his actual innocence.

It's like calling the batter out on strikes, without even letting the batter get to the plate.

Is this fair? What do you think?

Thursday, May 12, 2016

Cults of Personality And Manipulation: The Foundation For Fraud

A main tactic of manipulators seeking to control others and exert their will is to remove the moral authority of their targets to object or resist. This tactic is employed because the most effective tactic, the use of brute force, is too often considered a felony.

The control strategy is deployed by thoroughly researching a target to discover flaws, weaknesses or facts the revelation of which would be likely to cause serious emotional, financial, reputational or even physical harm. The threatened harm would have to be serious enough to induce the target to respond to the threat with acquiescence instead of defiance. Once the target's will to resist has been compromised, the target can be controlled for an indefinite period of time.

A certain charismatic leader is presently deploying this strategy on classic American conservatives -- today. (Tomorrow it may be a different target.) He has fashioned himself as the white middle class Toxic Avenger, in so doing, making himself a veritable pariah in many circles. More significantly, he is making his followers equally toxic. Yet he does not care, because he can and will destroy the reputations of anyone associated with or supporting him. Worst of all, he can benefit, offloading the consequences of misguided loyalty, ignorance or naïveté upon his lessers. Once those hapless supporters discover the plot, their reputations may be ruined for good. Only then will the final part of the plan unfold. These victims of their own ambition will then be left without reputations and in some cases without friends or livelihoods. In their reduced state, they will grow ever more dependent on the Boardwalk Emperor who in turn can continue to exploit them and profit from the ever-declining cost to him of the favors he feels like providing.

This is how the Maximum Leader can become like the drug dealer who profits more and more from the deepening addiction of his customers. Power is reinforced. So is dependence, as the victims fall into a reputational quicksand.

Surely these nefarious strategies are practiced by many, in business, politics and civic life, and even in some families. Criminals use this manipulation to deceive and then to embarrass those who might reveal a fraud. Darker hues of the human behavior know no boundaries except for those set, and then reinforced, by those who resist. Is this the fate which awaits those who embrace the charismatic leaders of cults of personality? You decide.

Tuesday, May 10, 2016

In Defense Of The Bomb: Rethinking Hiroshima

Western civilization apologists and others who simply hate "the West" love to insist on the United States apologizing and seeking redemption for using the atomic bomb to end World War II.

These criticisms are either ill-informed given the evidence that existed at the time, or willingly ignore the lack of a suitable alternative course of action.

The horrors of the atomic bomb, no matter its target, are manifest.

However, there were many other factors which played into President Harry Truman's decision to use this weapon of mass destruction.

As a historian of sorts whose college thesis nearly became a doctoral thesis (before law school interfered), I did the original research needed to offer this compelling competing viewpoint. Here are some inconvenient facts:

First: Japan remained in the war despite the surrender of its European theater allies of convenience, Italy and Nazi Germany, in April 1945.

Second: There was concern in both the European and Pacific theaters that the Soviet Union would try to permanently occupy any and all territories which its military controlled. Hence the race in Germany to reach Berlin. And thus the United States sought to proactively end the war with Japan instead of, say, bleeding them through a protracted air war and bombing the cities into utter ruin (which course of action might have produced even greater civilian casualties).

Third: The Japanese had earned a reputation for particular fierce and brutal fighting. The mentality which bred the kamikaze pilot was also expected to infuse its infantry. Indeed, such ferocity was encountered by American troops as they engaged in their successful, yet arduous, campaign of "island hopping" in the Pacific as they closed in on the mainland. There was no reason not to expect the same type of last ditch intense defense of the Japanese homeland if and when an invasion was launched. Furthermore, military intelligence reported that the Japanese had implemented a complex civil defense system. The result was the expectation that American soldiers would encounter hand to hand, street by street combat throughout Japan, and likely sustain significant casualties along with civilian casualties.

Fourth: Sustained air bombings of the mainland in 1945 did not induce surrender and supported the belief that an invasion would be needed to end the war. As explained above, an invasion was believed necessary but also was not preferred.

One must understand these factors in order to see how the decision to use the atomic bomb could be made for humanitarian purposes with a legitimate strategic objective of ending the war as quickly as possible, minimizing civilian and military casualties to both sides and maximizing the chance of preventing a Soviet invasion and later subjugation of the Japanese home islands.

Sunday, May 1, 2016

How Convention Delegates Can Be Conscientious Objectors To Trump

This is why people love to hate lawyers.
There is a conscientious objector "out clause" for Republican national convention delegates who get elected to those party positions this year.
This is how Donald Trump may not become the Republican nominee, no matter how many delegates he wins.
An example is from one of the remaining few states whose voters have not voted in a primary or caucus. Let's look at New Jersey.
The New Jersey Republican State Committee, basically run by acolytes or allies of that state's Governor, Chris Christie (who is the highest-ranking elected official anywhere to endorse Trump), adopted delegate selection rules last September. Those rules provide as follows:
First, look at Rule 6 which states: 
"All delegates and alternates to the Republican National Convention once a allocated and/or committed to a particular candidate by virtue of the June primary election shall be obligated and required to cast their vote for that candidate at the first vote to select the Republican Party's nominee for the office of President of the United States at the Republican National Convention."

But a rule is only as effective as its ability to be enforced, or the ability to punish noncompliance. Now read Rule 7.
 "Any delegate or alternate allocated and/or committed to a particular candidate by virtue of the results of the June primary election who fails or refuses to act in accordance with their allocation and/or commitment to that candidate as set forth herein shall be subject to censure by the New Jersey Republican State Committee and/or the County Republican Committees. Censure may include, among other things, being permanently barred from acting as a delegate or alternate to any future National Convention of the Republican Party."
The operation of these Rules allows for conscientious delegates-elect to exercise their judgment at the convention. This is, after all, how republics work. America is not a direct democracy, it never has been, and the Founding Fathers actually recognized the dangers of direct democracy. (A careful reading of The Federalist Papers is in order, if you wish.) While you can dial in the objections of opposing candidates, these rules are posted and explained so readers can understand that delegates who vote for Trump this summer, and hide behind the explanation that they were "required" to do so, are simply using an excuse to avoid criticism.